William Fry LLP was delighted to act for Tesco Ireland Limited (Tesco) in the successful defence of an application brought by Friends of Killymooney Lough seeking leave to appeal Mr Justice Humphreys’ decision to uphold a grant of planning permission for a new Tesco store, drive-thru café, and petrol station in Cavan Town (Certificate Application).
The decision builds upon the judgment in Coolglass and outlines a crucial roadmap for assessing emissions-causing projects, in line with the Climate Action and Low Carbon Development Act 2015 (2015 Act).
In a judgment delivered on 31 October 2025 (Friends of Killymooney Lough v An Coimisiún Pleanála & Ors (No 2) [2025] IEHC 576), Humphreys J refused to grant leave to appeal his judgment upholding the validity of the planning permission in Friends of Killymooney Lough v An Coimisiún Pleanála (No. 1) [2025] IEHC 407. See our article discussing that decision here.
Pleadings issue and ‘retrofitting’ of a case
The Applicant sought leave to appeal by proposing certain points of law of alleged exceptional public importance which, it contended, should be considered by the Court of Appeal. It is established case law, particularly from the decision in Massey v An Bord Pleanála (No. 4) [2025] IEHC 309, that points of law to be certified for appeal must arise from the pleadings in the High Court – it is not appropriate or permissible for the Applicant to repackage or retrofit its case to fit within points of law to be sent to the Court of Appeal for consideration.
The High Court (Court) found that in this case, the points did not properly arise from the case. The mere mention of climate in the pleadings did not entitle the Applicant to raise whatever points they subsequently formulated in relation to climate. Humphreys J found that the questions/points which the Applicants sought to certify were “pure ad hoc invention and reprogramming having had sight of the judgment” and were never argued or pleaded. As a result, to allow the appeal would be a “significant setback for the rational and orderly development of climate law, because it would be sending a half-developed and under-analysed set of propositions into the line of fire that (in my possibly erroneous opinion) would, in such circumstances, be almost bound to go down in flames on procedural grounds alone.”
Public interest and prejudice to the developer
The Court accepted the arguments put forward on behalf of Tesco in relation to the significant financial prejudice that it would suffer from the delay that would be caused by an appeal, in the context of the contribution of the new store to the local economy of Cavan.
The Court also accepted Tesco’s argument that in circumstances where the intention of the Oireachtas in enacting section 50 of the 2000 Act was that planning judicial reviews should be restrictive in nature and typically determined by the High Court, permitting an appeal in this case would work an unfairness to Tesco, which is, in itself, contrary to the public interest.
Climate Action and Low Carbon Development Act 2015 (as amended)(2015 Act)
A key issue in the substantive case was whether the Commission had made its decision in compliance with its obligations under Section 15 of the 2015 Act, specifically, whether it had considered the Climate Action Plan 2024 (CAP24). The Court ultimately accepted that the ‘ ‘Commission’s decision complied with the 2015 Act, even though CAP24 was not explicitly referenced by the Commission, emphasising that decision-makers can carry knowledge of relevant policy without needing to cite it explicitly.
In the judgment on the Certificate Application, while leave to appeal was refused, Humphreys J made some comments on the steps to be taken by the planning authority / the Commission when deciding on an application for permission for development which would cause carbon emissions.
In the Coolglass decision, Humphreys J indicated that it did not necessarily follow that his judgment in that case meant permission could not be granted for developments that generated carbon emissions, and stated that “trade-offs and displacement effects would need to be considered.” However, no further guidance was provided in Coolglass regarding the manner in which developments that would cause emissions should be considered (see our article related to Coolglass here). Humphreys J has now provided some clarification on the point in this case.
While the Court recognised that these issues are due to be clarified by the Supreme Court in Coolglass, at least insofar as they relate to projects that assist in the reduction of emissions, the Court outlined three essential steps involved in assessing a project that causes emissions:
- identification of net emissions – the budgetary nature of the process implies a need to quantify net greenhouse gases (GHGs) attributable to the project, including what would be scope 3 in EIA terms, net of mitigation and offsets (including mitigation/offsets proposed to be conditioned), as compared with a counterfactual baseline scenario of no project (and thus a baseline scenario which may well not involve no emissions but rather an alternative level of emissions);
- evaluation against targets – if there are net GHG emissions, a determination of whether the emissions so identified come within the available headroom both nationally and sectorally as provided for in relevant climate policy instruments; and
- evaluation of practicability of compliance – in the event of any excess of emissions over available headroom, a determination as to whether the noncompliance involved is justified by considerations of practicability, such as, for example, by imperative needs of energy security.
While the above commentary is obiter and, therefore, does not bind the Court in future decisions, it provides a good indication of the Court’s thinking on assessing developments that cause emissions in the context of the planning authority’s / Commission’s obligations under the 2015 Act.
Conclusion
Although the Certificate Application was dismissed, and the issues remain to be clarified by the Supreme Court, the Court provided some helpful obiter comments on Section 15, including the steps outlined above. These steps set out a somewhat helpful roadmap or framework for subsequent cases involving decisions on an “emissions-causing project”.
Developers should be mindful of this commentary provided by Humphreys J when preparing EIARs in the context of planning applications for emissions-causing projects.
This case highlights the growing trend of including climate-related grounds in Judicial Reviews.